What are the grounds for terminating a land easement on a plot of land? Why can it be difficult to cancel an encumbrance?

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Published: 02/03/2017

Reading time: 9 min

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Easement as one of the options for using someone else’s property, in particular land, has long been firmly established in law enforcement practice as one of the ways to solve existing everyday difficulties or options with the help of which this property can be used in a limited way for common purposes and interests.

What significance is attached to this concept in modern property and international law?

History of the development of the concept and term
What types of easements are there?
What is property rights?
Servitude in property law
Easement in international law

What grounds can there be for terminating an easement?

The possibility of terminating an easement is taken into account in state law. Article 276 of the Civil Code of the Russian Federation specifies two grounds for terminating a land easement of a land plot:

the disappearance of the grounds on which restrictions on use were established;
inability to use the property for its intended purpose.

Regardless of the reason for termination, the initiator has the right to act as the owner of the property that is encumbered under the concluded transaction . The Civil Code does not imply the prospect of termination of an agreement based on a statement from the person in whose favor it is established. You can learn about the concepts and types of easements in the Civil Code of the Russian Federation and land law here.

Regardless of the reason for termination, there may be several leading reasons.

We talked about the rules of law, the grounds and procedure for establishing an easement in this article, and about the reasons and process of establishing, as well as the use of encumbered lands. you can find out here.

What is property rights?

Before answering the question of what meaning an easement in real rights has, it is necessary to note what exactly is meant by the concept of “real right”.

Property law is understood as such a set of existing legal norms that secures the ownership of specific property to its owners with all the rights and obligations arising from such ownership, as well as liability for the unlawful use of this property.
Property right is the right of the owner of property to own, use and dispose of this property.
All rights classified as property rights must be protected in the event of their violation, and also be subject to the principle of succession, when, when rights to property are transferred from one owner to another, all existing encumbrances on this property are also transferred.

That is why the meaning of easement in property law is quite interesting.

Cancellation by agreement of the parties and unilaterally

The option of terminating the easement by agreement of the parties is the easiest to implement from a legal point of view. It is used in a situation where the basis on which the restrictions were established has disappeared.

In some situations, such a possibility is initially stipulated in the contract between the parties. In other situations , you will need to sign a binding agreement in which the fact of termination is recorded . The advantage is that there is no need to go to court.

In some cases, most often when there are no grounds for termination in the easement agreement, only one party to the agreement may desire to terminate the agreement.

Important: the civil code does not take into account the prospect of unilateral termination of an easement. Only both parties to the transaction can participate in such an agreement.

In this case, to terminate the transaction, you will need to go to court at the location of the land plot. The grounds for termination of use remain the already mentioned reasons for the impossibility of using the institute, either due to cessation of need or due to technical impossibility.

The party filing the claim form will need to provide as much evidence as possible to support the grounds for termination of the easement. In this case, witness testimony and photographs of the place used may also be used.

Pay

An easement can be either paid or free. The legislation does not prohibit the owner of a land plot from demanding a proportionate payment from persons who have the opportunity to use the territory (clause 12, clause 13 of Article 23 of the Land Code of the Russian Federation).
If the parties have agreed on payment for the use of the territory, then the corresponding clause should be included in the agreement. The fee must be reasonable. It may include:

expenses associated with the implementation of the right of use;
the cost of creating a security and access control regime, etc.

Payment can be made one-time or in installments. The agreement can also be concluded free of charge if the parties have reached such a decision.

We wrote in this material how an easement is usually assessed, and here you can find out how the size and procedure of payment for the use of an easement is determined.

Forcibly

Cancellation of an agreement is also possible in a situation where one of the parties refuses to do so voluntarily.

Only a court decision becomes the basis for compulsory termination of the easement. In this case, the party requesting termination will need to:

prepare a claim for termination and submit it to the court based on the location of the disputed territory;
supplement the claim with an agreement between the parties on the use of the territory;
attach documents on registration in the Unified State Register of Real Estate;
provide evidence of the inability to use the site;
plaintiff's passport.

In such a situation, a court decision allowing termination of the easement becomes only the impossibility of the person who applied for the decision to use the land plot, passage or driveway to it, which has been proven in court .

Important: only those issues of land use are resolved by force when such a decision becomes the only possibility of preserving the property and civil rights of the plaintiff.

Read other useful materials from our specialists on how fees for easements are established and collected, as well as how to write a statement of claim for establishing an easement.

Holders

The legislation establishes that holders of easements are persons who have received the right to limited use of territory owned by another person (Article 5 of the Land Code of the Russian Federation). In other words, owners are participants in land relations in whose favor an easement has been established.

Most often, these persons receive the right to use only a certain section of the territory; cases where the owner is granted the use of the entire territory are quite rare.

As a rule, the owner is the owner of the neighboring plot, but in general the remoteness of the plots does not matter.

Who are the easement owners and what are their rights, read here.

What is the documentation?

Termination of an easement requires mandatory state registration. Such registration will require the submission of a decision to terminate the easement, based on the termination of the validity period specified when drawing up the agreement for such use of the land territory.

The entry into force of the agreement of the parties to terminate such an agreement, confirmed by an act of a local government body, issued on the basis of an application by the parties to terminate the easement (such an application can be prepared in free form and only requires the provision of title documents for ownership of the territory and passport data of the parties to the agreement).

Based on the documents submitted, a special entry is made in the Unified State Register of Rights at the registration authority at the location of the land plot.

You can find out whether an easement is subject to state registration and what documents are needed for this.

Features regarding lands in private and municipal ownership

The need to provide limited use rights may arise both for private land territory owned by a legal entity or individual, and for a site owned by the state.

If the land is privately owned, then only the owner himself can enter into an agreement to transfer the use of a certain plot to a third party. Land tenants, landowners or temporary users of the site do not have such powers.
If the land is in federal ownership, then the Rosimushchestvo acts as the owner (Government Decree No. 432 of 06/05/2008).

Both private individuals and the Federal Property Management Agency can demand payment for the use of land:

In the first case, the funds received will be the personal income of the owner.
In the second case, the funds will go to the federal budget.

The owner of the land can independently set the amount of payment for work on his private territory. If the land is owned by the state or municipality, then the amount of payment is established:

in accordance with Decree of the Government of the Russian Federation No. 1461;
in accordance with the procedure in force in a certain subject of the Russian Federation regarding lands owned by such subject;
in accordance with the procedure established by local authorities for municipally owned territories.

If municipal property has been provided for permanent, indefinite use for a period of more than 1 year, then the land user also has the right to enter into an agreement that the land plot may be encumbered.
If the territory is transferred for use to a municipal or state enterprise, then the conclusion of an agreement requires written permission from the government authority in charge of the enterprise.

If a person uses a municipal land plot as a tenant, then when a restriction on the use of land is established, its term should not exceed the term of the current lease agreement.

International legal

So, what is an international legal easement and an international legal lease? This is a special type of restriction.

It is determined by limiting the use by one state of the territory of another for the purpose of creating a settlement, carrying out transit, building naval bases, etc.

For example, ships of all countries have the opportunity to sail through the canals (Panama, Gibraltar and others).

Whether it is permissible to talk about the concept of easement in this case is a moot point. Discussions are ongoing both about terminology and about the admissibility of applying the very concept of easement to international relations. Clear and precise aspects of property law cannot always be unambiguously extended to interstate interactions .

If we nevertheless allow the application of international easement in international law, then it can be divided into three types:

Strategic (creation of territory neutral in the military-political sense, demilitarized area, transit of armed forces of a certain state through the territory of another country).
Political (renting the country’s territory for a consulate, an embassy of another country, a representative office of the UN and other international organizations).
Economic (transit of goods and passenger flows, international legal lease of space for mining or construction of industrial facilities).

Land easement - all the important and necessary information on this topic is in these articles:

What object can be burdened with an easement and who are the subjects of the easement relationship?
What could be the reason for this?
How is this agreement drawn up and how is state registration carried out?
When and in what cases does its effect cease?
How to calculate fees - instructions for setting costs.

Let's sum it up

A private easement can be removed by agreement between the parties and by court. A public easement is removed by decision of authorized state and municipal bodies, and also by court.

If the easement had an expiration date, then the encumbrance is terminated without the participation of interested parties.

All circumstances under which the owner of the plot has the right to demand termination of the easement are established by law.

Read: How to privatize land under a garage in 2021